JOTHIAMMAL Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) The plaintiff, who had lost before the first appellate Court, has filed this appeal. The suit was filed for declaration that the plaintiff is entitled to use the suit "A" schedule property and for mandatory injunction to remove the encroachment on "A" schedule property and for permanent injunction restraining the official respondents not to issue patta in respect of "A" schedule property to anybody.

(2.) The case of the plaintiff is that the suit "A" schedule property is a road called S.S.Colony Main Road. The road runs from the Northwest to the Southeast direction and is used for plying the vehicles such as lorry, minibus, town bus etc. The land admeasuring 3 1/2 cents immediately adjoining the road on the Eastern side, is the 'B' schedule property. "B" schedule property is a part of the land situated to the Northern side of the lands situated in Survey Nos.909/1 and 909/2 comprising a total of 1 acre and 78 cents. 'C schedule property, is a portion of land admeasuring 2067 sq.ft of the larger extent of property in Survey No.909/2 admeasuring totally 60 cents. It is stated that the lands in Survey Nos.909/1 and 909/2 admeasuring a total extent of 1 acre and 78 cents belonged to one Rama Thevar, the father of the plaintiff and 13 others as joint family property and the same was partitioned by way of sale deed dated 28.10.1991. In the said partition, the "B" schedule property was alloted to the plaintiff and she has been in possession and enjoyment of the same. The plaintiff had purchased the property described in "C" schedule from one Manickam by way of a registered sale deed dated 28.10.1991 and she has been in possession and enjoyment of the same. The plaintiff had left the "B" and "C" schedule properties unoccupied for a few years and taking advantage of the absence, the defendants 7 to 11 encroached "A" schedule property and constructed a building by obstructing the access of the plaintiff to the main road. The plaintiff gave representation to the fifth and sixth defendant to remove the encroachments made by the defendants. However, no action was taken by them. Hence, the plaintiff had filed a Writ Petition in W.PNo.8373 of 2005 before this Court, wherein, this Court had directed the respondents to consider the representation of the plaintiff. However, in contravention of the legalities, the fifth defendant had issued a 'No Objection Certificate' to issue patta in favour of the respondents 7 to 11, vide his communication dated 26.09.2008. It is further stated that the defendants 1 to 5 have acted in violation of the order of this Court, which has specifically directed the authorities concerned to remove encroachments. There is no other pathway to enter into "B" and "C" schedule properties belonging to the plaintiff and therefore the plaintiff's easementary rights are affected. Hence, the suit was filed.

(3.) Denying the allegations supporting the cause of action for suit, the defendants 4, 5 and 7 to 11 have filed their written statement. It is contended that the suit "A" schedule property is a poromboke land and hence, the plaintiff cannot claim any prescriptive right of easement over the same. Since the defendants 7 to 11 have been in possession and enjoyment of the suit property for more than 40 years and have been paying taxes regularly, patta was issued to them under G.O.Ms.No.854 dated 30.12.2006. Pursuant to the order of this High Court in W.P.No.8373 of 2005, an enquiry was conducted and after issuing notice to the plaintiff, patta has been issued in favour of defendants . It is also contended that even prior to the institution of suit, pattas were issued in favour of defendants 7 to 11. Hence, the defendants prayed for dismissal of the suit.